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The Family and Medical Leave Act (FMLA) is a cornerstone of federal employment law, offering crucial job protections for employees grappling with their own or a family member's serious health condition. Under FMLA, eligible employees are entitled to up to 12 weeks of job-protected leave within a 12-month period.
However, the need for leave often doesn't conform to a continuous, 12-week absence. Enter the concept of intermittent FMLA leave — a provision that allows for a more flexible application of FMLA leave, accommodating the varying demands of serious health conditions.
This nuanced aspect of FMLA is particularly relevant for both employers and employees, especially in small businesses where every team member's role is vital. In this post, we aim to demystify intermittent FMLA leave, addressing common questions and providing clarity on this complex topic.
Intermittent FMLA leave is available under the umbrella of FMLA protections, but only to employees of "covered employers." These are employers who have had 50 or more employees for at least 20 workweeks in the current or preceding year.
Eligibility for FMLA, including its intermittent application, also requires that an employee has worked for the employer for at least 12 months and has clocked in at least 1,250 hours during that time.
While federal law sets the baseline, employers should be aware that state or local laws may offer additional provisions for leave. Consultation with HR compliance experts is advisable to navigate these complexities and ensure lawful and empathetic handling of leave requests.
Employees utilizing intermittent FMLA leave are granted the same total allotment of 12 weeks of unpaid leave within a 12-month period as those who opt for continuous FMLA leave. This ensures flexibility in how leave can be taken, allowing for the accommodation of medical treatments, recovery periods or caregiving responsibilities without diminishing the total leave entitlement.
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Employees may take FMLA leave to care for and/or bond with a newborn or a newly adopted or fostered child within the first 12 months of the birth or placement of the child. However, whether the leave may be taken intermittently may be up to the employer.
If an employee's newly born or placed child has a serious health condition, the eligible employee will be permitted to take FMLA leave intermittently regardless of the preferences of the employer. If the newly born or placed child does not have a serious health condition, whether FMLA leave is permitted to be taken on an intermittent basis is a decision whose final approval rests with the employer.
Stated simply, a covered employer may not deny regular FMLA leave to an eligible employee taking leave to care for a newborn or newly placed child. They may, however, require the employee to take any leave in a single period as long as the child does not have a serious health condition.
Reduced schedule FMLA leave is a type of intermittent FMLA leave available to eligible employees. This type of FMLA leave is generally extended to employees who need to consistently work fewer hours or shorter shifts based on a medical need.
Reduced schedule FMLA leave allows an employee to cut back on the number of hours that they work in a day or a week in order to care for themselves or provide care to a family member with a serious health condition. When an employee takes this type of intermittent FMLA leave, employers track the number of reduced hours toward the same 12-week allowance the employee would be eligible to receive under any other type of FMLA leave.
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Eligible employees are permitted to take 12 weeks of intermittent FMLA leave during any 12-month period. A common question, especially for employers whose employees have chronic health concerns, is whether this leave can be taken every year on a consecutive basis.
In short, yes, employees can use intermittent FMLA leave every year in full. In a February 2023 opinion, the U.S. Department of Labor’s Wage and Hour Division emphasized that employees utilizing reduced schedule FMLA leave may continue to do so indefinitely, as long as their total hours do not exceed those they would have taken in any other 12-week period throughout the year.
Exceptions to this rule may be made for employees taking up to 26 weeks of FMLA leave in a 12-month period to care for military servicemembers, where leave may limited to one “portion” of leave per servicemember, per injury or illness.
The FMLA ensures that eligible employees maintain certain job protections while on FMLA leave and after returning to work. When an employee takes intermittent FMLA leave or reduced schedule FMLA leave, it’s reasonable for employers to require employees to schedule leave in a nondisruptive way to the extent feasible, and subject, of course, to the employee’s health needs.
In some cases, employers may transfer the employee to a different job on a temporary basis while the employee is taking leave. Transfer is permitted when the temporary role is one that with the same (or better) pay and benefits and is more suitable for the employee’s leave needs.
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Navigating FMLA requirements, especially regarding intermittent leave, can be daunting for small businesses. Partnering with HR solutions providers like Axcet HR Solutions can help businesses confidently manage FMLA compliance, supporting both the operational and human aspects of employee leave. With expert guidance, businesses can ensure they are making informed, lawful decisions that support their teams' health and well-being.
By enhancing understanding and simplifying the complexities of intermittent FMLA leave, businesses can foster a supportive workplace environment, ensuring compliance with federal mandates and supporting employees through challenging times.
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